In this debate, the author wonders if the controversial guidelines issued by a Supreme Court Bench had a caste bias? National Herald will be publishing a counterpoint to this opinion alongside this

To protect innocent citizens against false criminal cases is a noble principle. It is however not a new principle that India has discovered. On the other hand, the element of ‘innocence’ is a subjective perception in a society where the caste system manifested through one’s social status as ‘pure’ or ‘impure, and ‘high’ or ‘low’ caste, leads to the widely accepted view that multiple forms of untouchability are a creation of God.

Indian law has criminalised discriminatory behaviour under the influence of caste in the public sphere, but has refrained from upholding caste as anti-national, immoral and irreligious, even when it has failed miserably to abolish untouchability and practices such as manual scavenging after seven decades of its independence.

The controversial guidelines issued by the judges of the Supreme Court in relation to the Prevention of Atrocities Act (PAA) however cannot be attributed to similar caste bias. That would amount to contempt of court. But it is curious how there is ample place in our democratic life to check caste prejudices of civil servants, political leaders and religious leaders, but not of the judiciary. In 1994, I came across a case in Dhandhuka town of Gujarat, where the police brutally beat up a Dalit youth for purchasing a stolen bicycle for Rs 200.

He was confined to a police lockup for more than 36 hours. The poor man was unable to even stand up on his feet and therefore the police produced his younger brother before the magistrate as the person they had arrested. The arrested man was later rushed by family members to the government hospital, where the doctor registered the case history and informed the police. The mention of the police frightened the man and he refused to be treated.

The same night the police made out a story that he had hanged himself in his own house. The man who could not even stand had raised himself so that he could hang. The case was argued in the Gujarat High Court. In my presence, when the prosecutor defended the police action, deeply perturbed by the photographs of the injuries on the deceased, the judge asked the prosecutor, ‘Had there been a policeman in the place of the victim, what would you say?’ The prosecutor replied without hesitation, ‘My Lord, the law differs from person to person’. Next time I heard of the prosecutor, he had just been appointed a judge at the Bombay High Court. The doctor, who had recorded the injuries on the body of the victim, also turned hostile and held that his writing was a ‘slip of the pen’. He was a Dalit.

The police were acquitted. The law was abused, not by the Dalits but by the state prosecutor, the police and the doctor. The law in fact protected all of them but failed to protect the victim. I was often invited to deliver lectures at the National Judicial Academy, Bhopal. At one such lecture on Prevention of Atrocities Act, a senior judge intervened and said, “If we walk on the path of the Vedas and Puranas, the country does not require a law.” A sessions judge, duly promoted to the post, told me that this senior judge had advised him: ‘Do not convict too many people under PAA and do not dispose of the cases speedily’. In atrocity related cases, judges often suggest an amicable settlement before the trial begins. It is not uncommon to overhear the trial court judges themselves using derogatory caste words for Dalits.

The need for an anti-untouchability law was discussed, and it is recorded as part of the Poona Pact (1932), which promised that if such a law could not be enacted immediately it would be the first law in Independent India. However, the law did not come until 1955 when India enacted the Untouchability Offences Act. With the continuing and increasing crimes against Dalits, India enacted Civil Rights Protection Act, 1976, which popularly came to be known Prevention of Atrocities Act. To give more teeth to the Act, all political parties contributed to the newly amended anti-atrocities Act, 2016. The law was not amended overnight. The process took more than four years and the draft was screened by the Standing Committee of Parliament and even the Law Commission.

I am sure the judges of the Supreme Court who passed the recent guidelines were aware about these developments. I have my own reservations to certain aspects caste-based reservations. I have worked for 38 years addressing the cause of untouchability and caste discrimination. I redefined Dalits as ‘all those who believe and practice equality’. I am aware and have written extensively that Dalits too have caste hierarchy within and they too practice untouchability. Navsarjan was the first organization perhaps to do a comprehensive study on prevalence of untouchability as practices between Dalits and others and within the Dalits on the basis of sub-caste. I have had the personal experiences of being ex-communicated by other sections of Dalits for having eaten in the home of a Valmiki, most of whom are engaged in manual scavenging. Often, I have been accused of being a non-Dalit. But I have experienced untouchability as a child working in farms and have closely seen caste realities living in villages for many years. And yet, I firmly believe that one cannot throw away baby with the dirty bath water. Gandhi had told his inmates after bitter happenings of the Poona Pact to the effect that even if Dalits were to smash the heads of caste Hindus they should not complain for the volume of injustice for centuries that have been heaped on them. The root cause of the problem is prevalence and pervasiveness of caste system and the arms of law are too weak to annihilate it. If there is a demand to introduce caste based reservations in the judiciary at all levels, it would be logical and rational.